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RICHMOND--If you can't afford a lawyer, you might not want to commit a crime in Virginia.
Your court-appointed attorney will be paid the lowest rate in the nation--so low that a criminal defense attorneys' group is considering suing the state.
Virginia's indigent defense system has gone through big reforms in recent years, but lawyers say the pay for doing court-appointed work is so low that it's driving attorneys away.
A bill that would have lifted the caps on fees paid to lawyers for doing court-appointed cases failed in the 2006 General Assembly session. Legislation did pass that allows judges, on cases involving a felony that can be punished by more than 20 years in jail, to provide up to $850 in additional compensation to the lawyer if the circumstances and difficulty of the case warrant it.
The fee caps and hourly caps do not apply to capital cases, and lawyers taking court-appointed death-penalty cases must undergo extra training and certification.
Attorneys who accept indigent cases are paid $90 an hour by the state, but the state also limits the number of hours they get paid for--less than two hours for low-end misdemeanors, even though it can take numerous hours to adequately investigate and prepare a defense even for a misdemeanor.
Those hourly limits mean that while it sounds as if lawyers are getting $90 an hour, one defending a simple misdemeanor really gets very little because of the cap, no matter how complex the case might turn out to be. Lawyers might have to make multiple court appearances, and need time to interview witnesses and their own clients--things that will take far more than the hour and a half they're being paid for.
Del. Dave Albo, R-Springfield, sponsored the failed bill this year that would have lifted the caps.
"The amount of money that Virginia pays court-appointed lawyers is beyond a joke now. It's horrendous," Albo said. "We got closer this year. [Delegate] Lacey Putney's bill got passed, which takes the caps off some of the more serious ones. The problem with our bill, there's no way to figure out how much it's going to cost. Everybody's been underpaid for so long the lawyers didn't bother writing down the number of hours that they spent for hours they're never going to be reimbursed for."
Lawyers say that means attorneys who take those cases often lose money, and that the low fees are an embarrassment to a state that prides itself on being tough on crime.
"We have a system that needs a tremendous infusion of capital to get fixed," said David Johnson, executive director of Virginia's Indigent Defense Commission. "It's amazing we're 50th in the country. We're not a poor state. I don't think anybody expects to make a lot of money doing court-appointed work, but I don't think it's unreasonable that you not be asked to lose money doing court-appointed work."
Virginia's indigent defense system has its roots in the 1970s, when public defender offices were opened in the state. For years, public defenders took on indigent cases where they had offices, and other localities relied on whatever local attorney the judge appointed to defend an indigent client.
Now there are 25 public defender offices, including one serving the Fredericksburg area, but localities without such offices must rely on ad hoc court-appointed attorneys for indigent cases. And even localities with public defenders often need to appoint outside attorneys for indigent cases when there's a conflict--if, say, more than one person is charged in a crime, and one person is being represented by the public defender, the others will need court-appointed attorneys.
In 2004, state legislation combined the two areas, creating the Virginia Indigent Defense Commission, which replaced the Public Defender Commission and was charged with overseeing both public defender offices and court-appointed attorneys.
The 2004 legislation also created new rules requiring that lawyers who wanted to do indigent defense work complete a certification course.
The Indigent Defense Commission put together a free, two-day course to provide such certification, but Johnson said many lawyers who had been doing court-appointed work were insulted--they were being asked to take two days of their time for training to do something they already did, for a pittance.
"Anecdotally I've heard, 'I'm not doing that, this is insulting,'" Johnson said. But, he added, the intent is to help attorneys and defendants alike.
"If you can get past the initial irritation, the idea is to try to raise the bar for indigent defense work," he said. "We're trying to be a resource to the private bar."
About 1,900 of Virginia's lawyers have gone through the training, Johnson said.
Del. Brian Moran, D-Alexandria, who helped sponsor the 2004 legislation, said training and standards were desperately needed.
When he was a prosecutor, he said, he often noticed "a substantial disparity in regard to competence" between lawyers who'd been hired by the defendants and those appointed by the court.
"As a prosecutor, I saw instances where I was very concerned with the representation a particular defendant was receiving. There were times I felt I had to do both jobs," Moran said.
He has seen judges remove attorneys from cases, and remove attorneys from the court-appointed list.
Moran and others were careful to emphasize that most court-appointed attorneys are good lawyers who do the best they can for their clients.
But some have little criminal defense experience, Moran said.
"There are instances where a lot of competent counsel are doing it just as pro bono work, because they think it's the right thing to do. And then the concern is there's others who are not sufficiently competent in criminal law to be doing these trials," he said.
So Moran thinks the training part of the 2004 reforms was urgently needed. Now, he says, better reimbursement for the attorneys who take indigent cases is necessary.
"We need to pay them an amount that adequately reflects the work that was performed on the case," Moran said. "Right now we are not providing compensation that merits a fair and just system. They're the lowest in the country, and I think our criminal justice suffers because of it."
Attorney Joseph Hicks, who has a general law practice in Spotsylvania County, said he doesn't do court-appointed work for charity--he sees it as a way to keep his hand in criminal law as well as contribute to the system.
Most court-appointed lawyers, Hicks said, believe in "the idea that everybody has the opportunity to be protected and have their rights protected by the Constitution."
But, he said, the low fees are the biggest problem in taking on indigent cases.
"From a private counsel's perspective, I'd like to think it doesn't affect our representation in any way, but you can't escape the fact that it probably does on some level. It's just not enough," Hicks said. "We're not making much money. Hopefully we're all making a little bit of money."
So what's stopping lawmakers from raising the rates or the cap on fees? Johnson and others say the legislature seems open to doing that, but that it's expensive--and poor defendants don't carry much lobbying clout.
"It's a priority issue. There aren't a lot of people clamoring to have the court-appointed fees raised," said Betsy Edwards, head of the Virginia Indigent Defense Coalition, an organization of legal associations that banded together in 2001 to lobby on the issue.
"We're talking about poor people, or working poor people. I'm not sure they're organized enough to get out there and say this isn't fair, this isn't upholding the Sixth Amendment. It shouldn't be any old lawyer that's appointed for you, or one that's being paid virtually nothing."
Albo, whose bill unanimously passed the House Courts of Justice Committee--made up mostly of lawyers--but died in the House Appropriations Committee, said it comes down to money.
"It's going to be tons of money. The problem is when somebody's faced between choosing between money for schools or money for court-appointed attorneys for criminals, guess who wins," he said.
Edwards added that the bifurcated system--in which some defendants get public defenders, whose whole job is to defend poor clients, and others take their chances with court-appointed attorneys--also is a problem.
Public defenders might have big caseloads and small salaries, but they do at least have a support system, such as investigators. Court-appointed lawyers don't, they must request an investigator from a judge, who often doesn't grant one.
Edwards said the state spent just $65,000 on investigators for court-appointed cases in fiscal 2005.
"So you can see how seldom a court-appointed lawyer was granted an investigator," Edwards said. "That's a big problem, and it's unfair. It means the guy in the next county will get an investigator and you won't."
To reach CHELYEN DAVIS:
Email: cdavis@freelancestar.com
